Citation Nr: 0311620
Decision Date: 06/05/03 Archive Date: 06/10/03
DOCKET NO. 96-40 117 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for fibromyalgia, claimed
as secondary to service-connected post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESSES AT HEARING ON APPEAL
The veteran and his brother, Mr. L.S.
ATTORNEY FOR THE BOARD
Bernard T. DoMinh
INTRODUCTION
The veteran served on active duty from October 1961 to
September 1964.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 1996 rating decision by the Roanoke,
Virginia, Regional Office (RO) of the Department of Veterans
Affairs (VA) which, inter alia, denied the veteran's claim of
entitlement to service connection for fibromyalgia (claimed
as secondary to service-connected PTSD). In the course of
the appeal the Board remanded the claim to the RO in August
1999 for additional evidentiary and procedural development.
After this development, the RO confirmed the denial of
entitlement to service connection for fibromyalgia and the
veteran continued his appeal.
Pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2) (2002))
which was then in effect, the Board undertook additional
development of the aforementioned issue in a memorandum dated
November 2002. Specifically, pursuant to the Board's
development memorandum, the veteran was scheduled for a VA
medical examination so that a nexus opinion could be obtained
in order to determine the relationship, if any, between his
claimed fibromyalgia and his military service. This was
conducted in April 2003 and the report of this examination
has been associated with the claims file. Thereafter, the
claims file was returned to the Board in May 2003.
REMAND
During the course of this appeal there was a significant
change in the law. In the recently decided case of Disabled
American Veterans v. Secretary of Veterans Affairs, Nos. 02-
7304, -7305, -7316 (Fed. Cir. May 1, 2003), the United States
Court of Appeals for the Federal Circuit (hereinafter "the
Court") determined that regulation 38 C.F.R. § 19.9(a)(2)
was invalid because it allowed the Board to consider
additional evidence without having to remand the case to the
agency of original jurisdiction (i.e., the RO) for initial
consideration of the evidence and without having to obtain
the appellant's waiver, contrary to controlling statutes.
Therefore, the case should be remanded to the RO for
development in compliance with the Court's decision in order
to circumvent commission of any procedural defects.
In view of the foregoing discussion, the case is REMANDED to
the RO for the following development:
1. The RO must ensure that all notice
and duty-to-assist provisions of the
Veterans Claims Assistance Act are
applied in the development of the
claim.
2. After all development has been
completed in accordance with VCAA, the
RO should readjudicate the veteran's
claim of entitlement to service
connection for fibromyalgia.
3. If the claim is not resolved to
the satisfaction of the veteran, a
Supplemental Statement of the Case
should be prepared and the veteran and
his representative should be given a
reasonable period of time for reply.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
______________________________________
G. H. SHUFELT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).